[2018] KEHC 6591 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

HIGH COURT CRIMINAL CASE NO. 93 OF 2015

LESIIT, J.

REPUBLIC..........................................PROSECUTION

VERSUS

RUTH WANJIKU KAMANDE...................ACCUSED

JUDGMENT

1. The accused Ruth Wanjiku Kamande is charged with murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63 Laws of Kenya). The particulars of the offence are:

“On the 20th day of September, 2015 at Buruburu Estate within Nairobi County murdered FARID MOHAMED HALIM.”

2. In this case the prosecution called a total of 15 witnesses. The brief facts of the prosecution case are that the accused was having a relationship with the deceased, and at the time of the incident they were living together. It is not clear from the evidence how long they had lived together. It is however clear that on the week leading to the fateful morning the two had been together.

3. On the fateful Sunday morning of 20th September, 2015 at 9. am. or thereabouts screams and calls for help were heard in the house of the deceased which he had rented from PW7 and 8, a man and wife respectively. PW8 was the first to go to the back of her house where accused house was to find out what the matter was. As she walked towards his house she heard the deceased saying “nisaidie, nisaidie, Amenidunga”. “Help me, help me, she has stabbed me.”

4. PW8 knocked on the door and asked loudly what was going on inside that house. Then she heard the deceased say. “It is this one who has stabbed me.” Followed immediately by the words “I have been stabbed again”. At that point PW7, husband of PW8 arrived at the scene from their house. The house where the deceased was calling from, his rented premises, was locked PW7 left to open the front door to their house.

5. PW7 was left to try and rescue the deceased. He testified that he looked inside the deceased house and saw the deceased standing facing a woman who had her back on him (PW7). PW7 came to know the woman as the accused in this case. The deceased was holding his abdomen and appeared to be in great pain. On the other hand, the accused was blocking the deceased from entering the kitchen. PW7 asked the deceased for his house keys to which the deceased told him to access it near the kitchen window. PW7 decided to break the window panel as the window was closed.

6. PW7 said that the deceased was still holding his stomach and lower abdomen when he broke the kitchen window. The deceased was standing on the small corridor between the kitchen and sitting room. The accused was holding a knife in her lifted hand actively blocking the deceased from accessing the kitchen.

7. PW7 stated that he could not get the keys even after breaking the window pane. He said that in desperation he asked the deceased why he could not punch the accused breasts and over-power her like a man. The deceased could hardly release his hands from holding his abdomen. PW7 said that he saw a neighbour outside and that he sent him to call police at Buruburu Police Station, one kilometre away. Just then, PW7 returned and heard the deceased crying out that he had been stabbed again. He then heard the deceased screaming from inside his bedroom. He peeped through the bedroom window and saw accused in the bedroom still holding a knife. The deceased was kneeling beside the bed with his body leaning on the bed.

8. PW2, another neighbour joined PW7 at that point. Police also came soon thereafter. By then the deceased had gone quiet. They were to discover he was already dead. PW2 saw the accused climb the kitchen sink and reach out for keys. There was inconsistency in the evidence of the prosecution on this point. According to PW2 the accused handed over the house keys to PW7. PW7 and PW5 on the other hand said that it was PW10 who ordered the accused to open the door to the house which she did. That matter is however not in dispute as the accused in her defence stated that she was ordered to open the house by a gun trotting Officer, which she did.

9. The post-mortem was carried out on the body of the deceased at City Mortuary the same day by Dr. Oduor Johansen. The doctor formed the opinion that the deceased died of multiple injuries and blood loss due to penetrating force trauma. The doctor found a total of 25 stab wounds on the chest, hands, legs, head, abdomen, back and shoulders of the deceased, with intestines sticking out of the abdomen. The body was pale, proof of excessive loss of blood. The Report was P. Exh. 12.

10. The prosecution also produced the P3 Form on the examination on the accused. It was P. Exh. 13. Dr. Maundu who examined her was PW13. He stated that she had a cut on the chest wall, several cuts on abdomen, and on the left hand and right leg. PW13 classified the injuries on the accused as harm. He also found the accused fit to stand trial. PW13 stated that the accused did not complain of any sexual assault.

11. The prosecution called another doctor, Dr. Muya, PW11. He testified that he treated the accused at Kenyatta National Hospital. He said that accused complained of assault with a sharp object and also of sexual assault. He examined her and found multiple soft tissue injuries in chest and abdomen. On pelvic examination we found her genitalia were normal. An abdominal ultra sound scan revealed to injuries of the abdomen. An X-Ray of the chest revealed no injuries or fractures.

12. PW9 the initial investigating officer of this case testified that he entered the house of the deceased the same day of the incident. He stated that he recovered love cards in deceased bedroom which he produced as P. Exh.7. He also recovered keys and 2 padlocks P. Exh.6. He also recovered a blood stained top and shorts from the accused, which he produced as P. Exh.9. PW9 stated that he took mouth swabs from the accused.

13. PW9 testified that PW6, one of the officers to arrive first at the scene handed over to him a knife P. Exh.3. The knife was identified by PW7 as the one accused used to stab the deceased. PW9 stated that when he saw the accused the same day of the incident she was able to walk without aid and appeared composed and calm.

14. The accused gave an unsworn statement in her defence. The defence case was that the deceased attacked her because she saw an AIDS Report on him and threatened to expose the deceased to his family. The accused said that she saw the Report in the bed that fateful morning.

15. The accused stated that the deceased turned violent against her and that he threw her on the bed, sat on her and with a knife he was carrying stabbed her several times on the chest, hand, thighs and stomach. The accused stated that she was able to disarm the deceased, after pressing his eyes and took the knife from him. The accused said that while lying on her bed and with the deceased seated on her, she stabbed him several times. She said that she lost count of how many times she stabbed him.

16. The accused stated that the day before the incident, the two of them had quarrelled over love letters she saw in a drawer in the bedroom. She said that she had wanted to know from the deceased why he was still keeping the love letters many years later. She said that at the time, Edward, PW3, the deceased maternal uncle had visited. She said that they were able to resolve the issue and spent the night peacefully.

17. The accused was represented by Mrs. Okonji. In her submissions Counsel urged that the prosecution had failed to prove malice aforethought urging that the number of injuries the accused inflicted on the deceased were not sufficient to prove same. Counsel urged that the actual damage caused to the internal organs by these stab wounds could not be ascertained because the deceased was not opened up.

18. Mrs. Okonji argued that the accused also suffered multiple injuries on chest and abdomen which necessitated her admission at Kenyatta Hospital. Counsel urged court to find that both accused and deceased suffered severe injuries.

19. Counsel urged that the evidence of PW7, 8 and 10 was not sufficient to prove that the accused hid the keys to the house as urged by the prosecution. Mrs. Okonji urged that the hidden keys claim did not support pre-meditation. In regard to the evidence of PW10 that accused was able to walk on her own, Mrs. Okonji urged court to find that PW10 saw accused confused and not calm.

20. Mrs. Okonji discounted evidence of PW1 and 4, cousin and sister respectively of the deceased that the accused was jealous and possessive of the deceased. Counsel urged that PW1 contradicted PW4 that the accused was not a girlfriend of the deceased, urging that PW4 denied that in her evidence

21. Ms. Onunga, Learned Prosecution Counsel for the State urged the court to find that the prosecution had proved its case against the accused beyond any reasonable doubt. Counsel urged court to find that the accused inflicted multiple injuries on the deceased with the sole intention of causing his death. Counsel urged the court to consider the evidence of PW7 and 8, among the first at the scene of murder, who stated that the accused stabbed the deceased at intervals. Learned Prosecution Counsel urged that given the fact the two witnesses heard the deceased screaming and saying that he had been stabbed again and again several times was proof that the accused did not stab the deceased in one go as she claimed in her defence. Learned Prosecution Counsel urged that since the accused and deceased were alone in the house, it had to be the accused who stabbed and seriously injured the deceased causing his death.

22. Ms. Onunga submitted that the accused was obsessed with the deceased, was extremely jealous and possessive, as testified to by PW1, to the extent she did not want to see any woman near him. Ms. Onunga urged that when the accused discovered love letters from previous friends of the deceased, this angered her and that it was the motive for the attack on the deceased.

23. I have carefully considered the evidence adduced by both sides and submissions by counsel.

24. The accused faces one count of murder contrary to section 203 of the Penal Code. That section defines murder as follows:

“Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder”

25. The prosecution must establish malice aforethought to bring the actions of the accused on the material day within the purview of the offence of murder. Section 206 of the Criminal Procedure Code sets out the circumstances that constitute malice aforethought as follows:

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:

1. An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not,

2. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

3. An intent to commit a felony;

4. An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

26. The issues in this case are very clear. First of all, there are facts which are not in dispute. It is not disputed that the accused and deceased were living together for an unknown period of time when the incident occurred. PW3 testified that he had seen the accused in deceased house for two months before the incident. He said that he was a constant visitor to the deceased, his sister’s son, because his home was not far from the deceased home. It is also not in dispute that for 2 days before the incident the two had a tense relationship. This can be determined in evidence of PW1 who had a conversation over whatsApp with the deceased on 18th September 2015, 2 days before the incident.

27. The WhatsApp messages were P.Exh.1, and were extracted by a police expert PW15. The messages indicated that the deceased was not happy with the accused. The messages show that the deceased shared an incident the day before (17th September, 2015) where accused blocked deceased phone’s sim-card as she tried to enter password and pin in order to read the deceased messages.

28. The deceased had stated on WhatsApp to PW1 that since the accused had discovered that he knew that she usually checked his phone, he had just changed his password and pin. The deceased continued to complain that the accused had even beaten him in the night. He also complained that she had locked herself in the bedroom as she tried to access his messages on the phone and did not open the bedroom door for him for half an hour, even though the accused knew that the deceased was getting late for work.

29. Going by the retrieved messages adduced in court, the deceased had told PW1 that after the drama where the accused was crying over frustration for not accessing his messages and thereafter the drama of following him as he went to work, he had told her that he was calling off their relationship as he did not want such drama in his life.

30. PW1 in her evidence stated that from all that information from the deceased, and from her previous encounter with the accused where the accused scanned her from head to toe, and was aggressive to her for finding her (PW1) having a meal with the deceased, she had concluded that the accused was jealous and envious of the deceased, and aggressive and unfriendly to any woman getting close to the deceased.

31. PW4, the sister to the deceased also testified that the deceased sounded uneasy and bored the night before he was murdered. PW4 testified that even though it was the deceased who called her that evening he was not responding to her questions. He however told her that he was with Biggy, a nickname for accused. PW4 stated that she realized that there was something wrong and decided to let the matter rest.

32. The evidence of PW3 who visited the deceased and found him with the accused the night before the attack sheds some further light in the matter. PW3 testified that he asked the deceased why the accused had locked herself in the bedroom when he visited, and why she was cold towards him. He said that the deceased told him that the accused had discovered old love letters written to him and was angry and upset over them and could not understand why he was still keeping them. PW3 testified that the deceased informed him that he was going straight to sleep because he did not want to argue with the accused.

33. It is clear that the accused and the deceased had tension on the night before the incident, and that the tension was over love letters the deceased was keeping from his past relationships. It is also clear from the evidence of PW1 that two days before the incident, the accused was upset with the deceased for changing his phone pin number and password, making it difficult for her to access his phone messages. She even took his sim-card and tried it on her phone in an attempt to access the deceased phone content.

34. There is evidence that the accused was crying and following the deceased that morning of 18th leading the deceased to warn her that he was going to call off their relationship.

35. In her unsworn defence the accused admitted the issue of the changed pin to deceased phone. She also admitted her unusual behavior of locking herself up in the bedroom when PW3, the uncle to the deceased visited. She however explained that she had painful periods and that it was the reason she left them in the sitting room.

36. There is further evidence that the deceased was unhappy and restless arising from a call he made to his sister PW4, the night after PW3 left his house. He was unusually quiet and did not respond to questions. He only indicated to his sister that he was with the accused.

37. The accused admitted stabbing the deceased and stated that she did it several times but could not tell the actual number. She put forward self defence as her defence. She said she was under attack and that the accused armed himself with a knife and sat on her to stab her.

38. The burden lies with the prosecution to prove the case against the accused beyond any reasonable doubt. The prosecution must prove that at the time the accused stabbed the deceased, she was motivated by malice and that she was not acting in self defence as she pleaded in her defence.

39. Regarding malice aforethought, in the case of Nzuki V Rep 1993 KLR 171 the learned Justices of Appeal set out the principles of determining whether intention to commit murder is proved as follows:

“ 1. Malice aforethought is a term of art and is either an express intention to kill or implied where by a voluntary act by a person intending to cause grievous bodily harm to his victim and the victim died as the result.

2. Before an act can be murder, it must be aimed at someone and must be an act committed with one of the following intentions

a. To cause death;

b. Cause grievous bodily harm; and

c. Where the accused knows that there is a serious risk that death or grievous bodily harm will ensure from his acts, and commits these acts deliberately.

3. Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder.

4. …

5. The offence with which the appellant was charged and convicted was committed in an environment of beer drinking and dancing, and except for the appellants bare statement in his unsworn testimony, there was absolutely nothing on the record of the superior court from which it could be implied that the appellant had any of the intentions when he unlawfully assaulted the deceased.”

40. In the cited case of Nzuki, supra, the Court of Appeal held that even though the appellant’s conduct was done with the knowledge that the action is likely or highly likely to cause death or grievous harm, that in itself is not enough if there is no evidence to establish that the accused had formed an intention to cause death or to cause grievous harm, or knew his conduct may cause serious harm or death but committed the act deliberately any way. In the cited case, the accused had stabbed the deceased only once.

41. In the instant case there was no one else in the house when the incident started. PW8 the first person to arrive at the scene found the deceased and accused in the small space outside the kitchen but before the sitting room of the deceased house. According to PW8 by the time she reached outside the deceased house, the deceased had been stabbed several times. This is established going by the words that PW8 heard spoken by the deceased to the effect, “Nimedungwa tena”.The words mean“I have been stabbed again”. PW8 testified that the accused continued to stab the deceased intermittedly just next to the kitchen. According to PW7 and 8, by the time he moved to the bedroom the deceased could no longer cry out for help.

42. The evidence of PW7 and 8 clearly establishes that the accused and deceased were not in the bedroom when the attack started. The accused defence that deceased was sitting on her in bed in the bedroom when he attacked her and that all the stabs she inflicted on him was from a lying down position with the deceased on top cannot be true. It is clear that the deceased was not in the bedroom when he was first stabbed.

43. The evidence of PW12 shows the areas where the deceased was stabbed. He had multiple stab wounds, 9 on the chest, several others on the abdomen, rib cage, backsides, shoulder, back of head and on the legs on both the front and the back. The stabs were 25 in total. It is not logical that at the time the accused stabbed the deceased on all those parts of the body, she was in a lying position with the deceased in a seated position above her.

44. The evidence of the persons who entered the house PW2, 7, 9, 10 and 14 among others was that there was blood on the walls and the floor of the house and also on the bed. It is unfortunate the photographs of the scene were misadvertedly destroyed. None the less the evidence of these witnesses establishes that the whole house had blood everywhere, evidence which discounts the accused defence that the incident occurred only in the bedroom. There was also the eye witness account of PW7 and 8 who clearly saw the deceased in the small verandah between the kitchen and the sitting room.

45. I find that the evidence of the eye witness account discredits accused defence that the attack was confined to the bedroom. The evidence is clear that the deceased was on his feet in the kitchen and corridor when the accused attacked him. In addition the evidence of PW2 that the accused climbed the sink to reach for the key to the house after the deceased had already succumbed to the injuries; taken together with the evidence of PW7 and 8 that the accused blocked the deceased from reaching the kitchen to get the keys where he normally kept them; in order to escape from her and the fact the accused not only stabbed the deceased 25 times all over the body, but did it intermittedly, all taken together establishes beyond any doubt that the accused had formed the intention to cause grievous harm or death to the deceased. The accused inflicted each stab, not in a frenzy as she alleged in her defence, but deliberately and intermittedly. Her action was calculated to inflict pain and cause death slowly but assuredly. That is clear proof of malice, of spite, callousness and hatred. There is no doubt in my mind that the accused action was caused by malice.

46. Was the action provoked? I doubt that malice can be proved. That notwithstanding, the prosecution has gone further to show the events that had taken place between the accused and the deceased two days prior to the incident, up to the night before. I need not repeat them here. These events show that the accused was extremely jealous of the deceased and held a grudge against the deceased for having kept some cards sent to him while in school, six years earlier. The accused was manipulative, cried to get the deceased attention and in the process, according to both PW1 and 3, tired the deceased to point of giving her notice that he was going to call off their relationship.

47. The accused put forward an explanation pleading provocation. The accused alleged that she had seen a document on AIDS CONTROL on the morning of the incident. She claimed that the deceased tore the document when she threatened to expose the deceased to his family. PW9 who recovered exhibits at the scene never came across any torn document. He was able to recover the love cards and even produced them in court as exhibits.

48. I find the accused allegation of the existence of an AIDS CONTROL document was an afterthought. No where did the defence raise the issue of such a document with any witness, not even the Investigating Officers. I dismiss that allegation as an afterthought and also as a made up story to escape the reality of what the accused had done. Even if such a document existed, which I find it did not, it could not justify the accused action on the material day.

49. Was it self defence? Section 17 of the Penal Code defines defence of person or property as follows:

“17. Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common”

50. I will cite the Court of Appeal case of Ahmed Mohammed Omar & 5 Others Vs Republic [2014] eKLR which dealt with principles of English common law relating to self defence. The court held:

“What are the common law principles relating to self defence? The classic pronouncement on this has been severally cited by this Court is that of the Privy Council in PALMER VS R [1971] AC 818. The decision was approved and followed by the Court of Appeal in R VS McINNES, 55 Lord Morris, delivering the judgment of the Board, said :

‘It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. .....Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ..... The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.”

51. I will also cite the case of Njeru Vs Republic [2006] 2 KLR 46, where the Court of Appeal held in regard to self defence:

“A killing of a person can only be justified and excusable where the action of the accused which caused the death was in the course of averting a felonious attack and no greater force than was necessary was applied for that purpose. For the plea to succeed, it must be shown by the accused on a balance of probabilities that he was in immediate danger or peril arising from a sudden and serious attack by his victim. It must also be shown that reasonable force was used to avert or forestall the attack

2. In this case it is not in dispute that the appellant being a police officer on duty, had shot the deceased and killed him. It was therefore upon the appellant to show that at the time of shooting he was in the cause of averting felonious attack and that no greater force than necessary was applied. The appellant is bound to show that he was in immediate danger or peril arising from sudden or serious attack by the deceased.

3. By virtue of section 17 of the Penal Code, the principles of English Common Law were applicable in determining criminal responsibility for the use of force in defence of the person or property, under those principles, a person who is attacked may defend himself but he may only do what was reasonably necessary. Everything would depend on the particular facts and circumstances.”

52. I am well guided by the cited cases. It is clear that the court has to determine whether the attack on the accused by the deceased was serious so that it put her in immediate peril, in order to find that the accused was justified to take immediate defensive action. The court has to determine whether at the time of stabbing, the attack on the accused caused a crisis, putting her in immediate danger, in order to justify instant reaction to avert the danger.

53. For the plea of self defence to succeed, it must be shown by the accused on a balance of probabilities that she was in immediate danger or peril arising from a sudden and serious attack by her victim. It must also be shown that reasonable force was used to avert or forestall the attack.

54. The case law is clear that force which is reasonable to ward off an attack is the one acceptable as self defence. As to whether the accused was in eminent danger when she stabbed the deceased. We have the evidence of PW7 and 8 that the accused and deceased were on their feet at the time of attack. PW7 and 8 testified that the accused was the one in control. She had the knife in her hand. She used it over a period of time, a stab at a time until the deceased was no more. That evidence negates any allegation that the accused was warding off an attack on her.

55. The number of times the deceased was stabbed is also an indication whether the action was in self defence. In this case, the deceased had 25 stab wounds all over his body. One can accept one or two stabs as inflicted in self-defence. Even if the first stab was in self defence to ward off an eminent attack, which I find it was not, twenty five stabs cannot be accepted as an act in self-defence, as it clearly rules out the fact that the various stabs were inflicted with the aim of warding off an attack. Were 25 stabs reasonably necessary to ward an off an attack? Was that reasonable force used? I find that the force used by the accused on the deceased was not reasonably necessary neither was it reasonable force.

56. The defence claims that there was a confrontation between the accused and the deceased. Was there a fight between accused and deceased? The injuries on accused were superficial cuts classified as harm by PW13. The admission of the accused in Kenyatta was for investigation of her complaint that she had been assaulted and sexually assaulted. Dr. Muya who treated her at Kenyatta said that they carried out XRay and Abdominal Scan to find out the level of injuries on the accused at all. She had no fractures and no internal injuries. There was no stab injury on the accused at all. The accused had no injury that could be comparable to the ones suffered by the deceased. It can clearly not be said that the two were in a confrontation as accused claimed.

57. As for accused admission to Kenyatta Hospital, and the examinations carried out on her, I have one word for that. The accused fooled everyone to believe that she was a victim. I could see the embarrassment on the face of Dr. Muya who was at pains to explain the necessity of admitting the accused in Kenyatta Hospital, and the need to carry out X-Ray and Scan examination. The doctors can be forgiven as they had an obligation to treat the patient taken to them. However, the patient had superficial injuries, was in no danger at all, and definitely apart for ruling out any serious injuries on her, keeping her in hospital was superfluous.

58. The Learned Counsel for the accused raised issue with the nature of post mortem examination carried out in this case urging that since the body of the deceased was not opened, no one can tell the nature of injuries suffered, the organs affected and the real cause of death.

59. I dealt with the issue of doctors’ opinion and the value of same to the court, in REPUBLIC Vs.KAMLESH MANSUKLAL DAMJI PATTNI alias PAUL PATTNI [2005] eKLR. In the cited case, I quoted from a text,Sarkar’s Law on Evidence 15th Edition Vol. 1,the opening remarks under the titleMedical opinion and itsvalue thus:

“The opinion of physicians and surgeons may be admitted to show the physical condition of a person, the nature of a disease, whether temporary or permanent the effect of the disease or of physical injuries upon the mind or body as well as in what manner or by what kind of instruments they were made, or at what time wounds or injuries of a given character might have been inflicted, whether they would probably be fatal, or actually did produce death.’

60. In same text, Sarkar on Law of Evidence (Supra) I relied on a case quoted from TANVIBEN PAKAJIKUMAR DIVETIA Vs. STATE OF GUJARATA1995 SC 2196; 1997 Criminal Law Journal 2535, 2551 where it was suggested:

“The doctor who had held the postmortem examination had occasion to see the injuries of the deceased quite closely and in absence of any convincing evidence that he had deliberately given a wrong report his evidence is not liable to be discarded.’

61. In the same case, REPUBLIC VS PATTNI,(supra), I quotedREPUBLIC Vs. LANFEAR 1968 1 ALL ER 683where DIPLOCK, L. J. gave the correct English position in regard to doctors’ evidence thus:

‘… Our view is that the evidence of a doctor, whether he be a police surgeon or anyone else, should be accepted, unless the doctor himself shows that it ought not to be, as the evidence of a professional man giving independent expert evidence with the sole desire of assisting the court…

The above case did not elaborate on the statement to show when a doctor’s evidence can cease to be treated as that of a professional man giving independent expert evidence. I did come across a more recent British authority which seems to lay down principles to be applied by the court to determine the value to be placed on such evidence. TURNER {1975} QB 834 at page 840;

‘Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or had omitted to consider relevant facts, the opinion is likely to be valueless.’

It would seem then that the position in England seems to be that the facts upon which doctor’s opinion is based must be disclosed and proved in evidence. Failure to prove them in evidence would render such an opinion of minimal or no value. In Kenya the position is quite clear and established, in DHALAY vs. REPUBLIC {1997} KLR 514 the Court of Appeal held:

‘It is now trite law that while the courts must give proper respect to the opinion of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so.’

The acid test set out in this case is that an expert’s opinion can only be rejected if there is proper and cogent basis for rejecting it. The principle was fortified in an earlier case NDOLO vs. NDOLO {1995} KLR 390. The Court of Appeal held;

‘The evidence of PW1 and the report of MUNGA were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held, the evidence of experts must be considered along with all other available evidence and it is the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision… of course, where the expert who is properly qualified in his field gives an opinion and gives reasons upon which his opinion is based and there is no other evidence in conflict with such opinion, we cannot see any basis upon which such opinion could ever be rejected.”’

62. I need not say much as the cited authorities speak volumes. A court has a duty to consider the evidence of experts, including medical experts, alongside other available evidence. A court also has a right to decide to believe or disbelieve the evidence of an expert. However, where such evidence is not believed the court must give reasons for so doing. Any challenge to medical opinion should be based on cogent proof. It is of course reasonable to say that in the case where the medical opinion is sought by a party to be challenged, that should be done by equally qualified medical personnel in the field in issue. The court would then have to determine which opinion to believe, weighing the opinions against the rest of the evidence adduced.

63. In this case, the challenge to the pathologist’s evidence and opinion was made in final submissions by the defence. No challenge was posed in the cross examination of the doctor. That challenge does not help at all as it shows that it was an afterthought. The court is however enjoined to consider the expert evidence of the pathologist.

Dr. Oduor, PW12 is a re-known pathologist in Kenya. There was no allegation made that he did not carry out an examination. His evidence was clear that he examined the body of the deceased and was able to form an opinion as to the cause of death, Dr. Oduor stated that the body was still warm. The deceased had been murdered the same day of examination. He said he did not open up the body on grounds of the deceased family’s religion. He however stated clearly that he was able to determine the cause of death even from the non- invasive examination he conducted on the deceased body.

64. I considered the evidence of the pathologist. I also considered the other evidence available, both from the prosecution and the defence. It is clear that the deceased was stabbed 25 times in sensitive areas of the body. The scene of the incident was according to the eye witnesses full of blood. That is in consonance with the doctor’s finding that the deceased died of blood loss due to penetrating force trauma. That finding is in tandem to evidence of PW7 and 8 of what they saw and heard, and of the police officers who visited the scene after the incident, including PW9 and 10.

65. I must add that there are instances where the court may not even have the benefit of any medical evidence as to the cause of death. The court would still be expected to make a finding as to what may have caused the deceased death. This is so where for instance the deceased person is injured in the bush, and in the opinion of those with him, he is considered dead. Then they may leave the body there to call the authorities only to find pieces of flesh and pieces of deceased clothing. Even in such circumstances the court would be expected to draw conclusions as to the cause of death.

66. Luckily in this case, we have both eye witness account, and pathologist’s opinion. Having considered both, I have no doubt in my mind that the prosecution has established beyond any doubt that the deceased died of stab wounds. The doctor’s evidence to that effect has no reproach, stands unchallenged, and is credible, logical and reasonable. I am satisfied that the prosecution proved the cause of the death of the deceased.

67. Having considered the evidence adduced in this case, I am satisfied that the prosecution has proved beyond any reasonable doubt that the accused stabbed the deceased, inflicting fatal wounds on his body which resulted in his death. I find that the prosecution has proved that the accused had formed the necessary malice to cause the deceased death. In the circumstances I find that the accused defence of provocation and or self defence does not apply to this case. Both defences are not available to the accused.

68. I am satisfied that the charge of murder contrary to section 203 of the Penal Code has been proved against the accused beyond any reasonable doubt. I reject the accused defence and find the accused guilty of murder contrary to section 203 of the Penal Code as charged. Consequently, I convict the accused of murder as charged under section 322 of the Criminal Procedure Code.

DATED SIGNED AND DELIVERED AT NAIROBITHIS 31ST DAY OF MAY, 2018.

LESIIT, J

JUDGE